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Changes in the works for the Ontario Mining Act

By NICK STEWART The relationship between surface rights holders and mineral rights holders has sometimes been a tense one, but a series of changes being proposed for the Ontario Mining Act may change that.

By NICK STEWART

The relationship between surface rights holders and mineral rights holders has sometimes been a tense one, but a series of changes being proposed for the Ontario Mining Act may change that.

“We’re trying to clean up the Act so it’s a little easier for people to understand, but also for it to be a little more friendly for the surface rights holder,” Garry Clark, executive director of the Ontario Prospectors Association (OPA).
Proposed changes to the Ontario Mining Act may alter how claims are staked on some types of private property. “It’s not that we won’t have access to those lands anymore, but it’ll make it easier for us to get access to them and get into dialogue with the surface rights holder, and that’s the main thing.”

Currently, the Act gives prospectors the ability to stake out open mineral rights, even if someone else holds the surface rights as a property owner, with a handful of exceptions.

If armed with the mineral rights, prospectors can legally enter the property and conduct exploration work, provided they notify the surface rights holder 24 hours prior.

This has sometimes led to conflicts between mineral rights holders and rather surprised surface rights holders who perhaps were not aware that it is legally possible for someone else to access and perform work on their land, Clark says.

As a result, MNDM spent the last year consulting with a number of stakeholders, including the OPA, leading to changes which propose to establish a stronger dialogue between the two sets of right holders.

It’s suggested that the surface owner should be notified within a certain time period, such as 60 days, after proper staking paperwork has been filed with the MNDM.

What’s more, the 24-hour warning prospectors must give to the surface rights holder is also being expanded. A notice of intent to perform ground exploration work must be sent to the surface owner a minimum of 30 days prior to entry on the property, and must come complete with full details as to the work due to be carried out.

The list of lands that are not open for staking is being altered as well. Provincial parks and First Nation reserves are currently barred from the staking process being added to this list are churches, cemetaries, burial grounds, airports as well as pipelines for natural gas, oil and water.

Rather than requiring the MNDM minister’s consent over the right to stake on certain properties, such as lands laid into residential lots on a registered subdivision, the staking consent will revert to the surface rights holder. This would require the filing of forms indicating clear consent from the property holder both in the initial staking process and where major changes to the initial plan are required.

Also being considered is the use of electronic map staking, though only in southern Ontario. While he’s somewhat concerned that the system may “creep” into the region and spell out doom for his members, Clark says the cost of going to map staking province-wide would too expensive to truly be feasible.

Although these changes have been outlined and discussed, the proposal as it sits is a preliminary and broad set of suggestions that the Ministry is merely considering as part of its process, according to Roy Spooner, legislative amendments project lead at the MNDM.  Nothing is set in stone, he says, and all options are currently open.

Those hoping for a speedy set of amendments to the Act may well be disappointed, as there are no deadlines for the process. The only recent deadline attached to the project closed when the MNDM completed a round of public consultation, which ran from mid-July to mid-September. While comments received during this period are said to be part of the public record, they will not be available until the MNDM has finished handling them internally, and no specific deadlines are set as to when that will be completed.

As a baseline, Marc Leroux, information manager with the Ontario Geological Survey, says the last set of changes to the Act occurred in 1996 and took roughly three years to develop and implement. However, he could not provide a comparison with the current round of changes, and was unable to provide a tentative deadline.

Policymakers are now working out meetings with various stakeholders, such as the OPA and the Ontario Cottagers’ Association (OCA).

Terry Rees, president of the OCA, says he welcomes the changes being proposed, and that the Act as it is written provides undue levels of access to private property with too little discussion with landowners. While the new round of changes fail to marry surface rights with mineral rights, he says they’re a much more measured approach to what’s currently in place.

“We understand there’s a balance of interests that must be served, and it’s not as simple as one side versus another.”
However, Alvin Fiddler, deputy grand chief of the Nishnawbe Aski Nation, says the proposed changes don’t go far enough, as they fail to follow a number of key First Nations issues such as increasingly stringent environmental regulation or even the inclusion of treaty rights.

The lack of detail surrounding provincial changes to First Nations consultation is also disappointing, he says, and that there needs to be revenue sharing and job creation involved in any future changes to the Act. He adds that the province could make related announcements right now, particularly with regards to the ongoing Platinex debacle.

“If the province is serious about making these changes, they need to be able to accommodate our interests, and it’s got to be a timetable that’s relatively short,” Fiddler says. “They can’t just say ‘we’re going to make these changes’ and not move forward. I think there has to be some show of good faith on the part of the province that they’re going to do it and fairly soon.”   

www.ontarioprospectors.com
www.foca.on.ca
www.nan.on.ca
www.mndm.gov.on.ca